Role of the JudiciaryBoon or Bane?

Author(s): SOLI J. SORABJEE

Source: India International Centre Quarterly, Vol. 20, No. 3 (MONSOON 1993), pp. 1-17
Published by: India International Centre
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 LECTURE

SOLI J. SORABJEE
*
Role of the JudiciaryBoon or Bane?

appraisal of the role of the judiciary in our country

confronts one with more than one paradox.
The first is that the judiciary which is regarded as the
weakest branch of the State, because it has neither
An the power of the sword nor of the purse, in effect and

reality is pretty powerful because of the impact of its decisions on

the life of a nation. Segregation in educational institutions in USA
was outlawed not by the Congress but thanks to the historic
decision in 1954 of the US Supreme Court in Brown v. Board of
Education. That judgment has been a tremendous force in the

process of dismantling what seemed the impregnable fortress of

racial discrimination.
In the Keshavanand Bharati case our Supreme Court held that
the power of amendment of the Constitution is not absolute and
cannot be exercised
so as to damage the basic structure of the
Constitution, to destroy its essential features. The consequence is
that Parliament is not supreme even when it exercises its con
stituent power of amendment and the last word rests with the

Supreme Court. Its recent decision in what is popularly known as

the Mandal case and its implications are bound to affect the course
of national for good
development, or for ill depending on in
dividual perceptions. Therefore, it is rather paradoxical to regard
the judiciary as the weakest branch. I am reminded of the quip that
a paradox is what adults tell. When a kid does it, it is called a big
lie.
Anyone familiar with the working of the Supreme Court
knows its crippling workload. It is difficult to find a public func

tionary so hard pressed as a Judge of the apex Court. The notion

^Revised version of the Tenth Dr. C.D. Deshmukh Memorial Lecture delivered
at the Centre on 14 January, 1993.

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2 / India International Centre Quarterly

that a Supreme Court Judge works for only five hours a day in a

five-day week is a myth. The week-ends of the judges are not spent
in rest and recreation but in wading through numerous volumes
of Special Leave Petitions (SLPs) and Writ Petitions (WPs) and
miscellaneous applications which come up for disposal every
Monday. They do not have the assistance of a law clerk. This is
indeed distressing because the strain of work is bound to and is
reflected in the quality of its judgments. Yet, paradoxical as it may

appear, our
Supreme Court
manage does to deliver
judg some
ments, especially in the field of administrative law, which can

compare with the best in the legal world.

Yet another paradox, and a baffling one, is that despite dis
satisfaction, disillusionment almost bordering on disgust with the
laws' scandalous delays and the working of the legal system and
the judicial process, the common person still turns to the judiciary.
It is the one institution in which citizens retain some faith and
which, despite all its shortcomings, is still regarded as the one

redeeming star, "the ever fixed mark" in an otherwise dark and

depressing firmament.
It is not a coincidence that whenever a Commission of Inquiry
or other high-powered body is constituted for the purpose of

examining any issue of national importance, the public demand is

invariably for a sitting or a retired Supreme Court or a High Court

Judge.
I am mentioning all this at the outset to prepare you for not

getting a clear-cut categorical answer to the question posed in the

title of my talk. This is not a diplomatic exercise nor a precaution

against possible contempt action but owing to the fact that our

judiciary like any human institution which has not been guaran
teed the gift of infallibility, has had its ups and downs, its moments
of pride as also those which bring the blush to one's cheek.
At the outset, let us ask ourselves what role should the

judiciary play in our constitutional scheme? In addition to resolv

ing disputes between members of the community should it have

the power of judicial review in the exercise of which it can strike
down not only executive orders and decisions but also laws passed

by Parliament and legislatures and can restrict the power of

amending the Constitution? How can five or seven or nine or

thirteen or for that matter the entire Court of 24 unelected judges
who are supposed to live in ivory towers quite out of tune with the

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 SOU J. SORABJEE / 3

urges and aspirations of the people invalidate laws passed by the

elected representatives of the people? Is this not undemocratic?
This criticism stems from a misconception of the judicial func
tion and the purpose of judicial review in our constitutional sys
tem. One of the concepts embodied in our Constitution is that of a
limited government. Consequently, no authority can have absolute

power, nor can the limits of power be determined by the limited

power itself. Since our Constitution divides powers between dif
ferent bodies and also prescribes limitations on
the powers of
Parliament, the State Legislatures and the executive, an impartial

umpire to resolve the inevitable disputes over the boundaries of

constitutional power which arise in the process of government is

imperative. Moreover, our Constitution has guaranteed certain

fundamental rights in Part III of the Constitution and has expressly

provided that any law which infringes any fundamental right will
be void. Thus, fundamental rights constitute a limitation on the

power of Parliament and State Legislatures.

But one may well ask: Why should judges perform this role?
Are they superior beings endowed with greater intelligence or
wisdom than the members of the other branches of the State?

Certainly not. In fact, some of our legislators and administrators

are extremely able and versatile. The crux of the matter is that the
entire purpose of imposing limitations would be defeated if the
concerned Legislatures and the Executive are to be judges in their
own cause whenever the validity of their action is in question.
Moreover, judges, who have no stake in the matter and who are
above the tensionsand temptations of party strife are better

equipped by their training and tradition to take an objective view

of longer range than the limited period of responsibility entrusted
to the Legislature and the Executive.
This aspect of the matter was considered in the Constituent

Assembly. After a full and extensive debate our Founding Fathers

entrusted the solemn duty of enforcing the fundamental rights of
the people of India to the Supreme Court and the High Courts.

They were aware of the dangers inherent in entrusting judicial

review to "five or six gentlemen sitting in the ... Supreme Court".

They were, however, prepared to take the risk because they did not
trust either the Parliament or the Legislatures to observe the dis

cipline of fundamental rights which, they apprehended, could be

steamrollered by a popular assembly swayed by the passions and

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4 / India International Centre Quarterly

prejudices of the day. They trusted judges to exercise the judicial

power of invalidating statutes with mature self-restraint, and only

in cases of patent unconstitutionality and not for giving effect to
their personal philosophy and predilections. That, at least, was the
hope and faith of the Founding Fathers.

were the limits to judicial review envisaged by the

Founders? Specifically, was judicial review available in
What cases of agrarian reforms and socio-economic legislation?
According to Nehru,
the judiciary was ill-equipped for the

great task of social engineering. In substance, its role was important

but limited, because "... the responsibility for the governance of
India, for the advancement of India lies on this and future Parlia
ments". To Nehru,
an impatient man who was perturbed that ages
had "slipped by while we are waiting", it was intolerable that
further ages should slip by as cases limped from court to court. He
did not mince words in the Constituent Assembly about what he

thought the role of the judiciary should be in these matters: "Within

limits no judge and no Supreme Court can make itself a third
chamber ... If we go wrong here and there it can point it out, but in
the ultimate analysis, where the future of the community is con
cerned, no judiciary can come in the way." After these thundering
words he somewhat mellowed and added: "But we must respect
the judiciary, the Supreme court and the other High Courts in the
land. As wise people, their duty is to see that in a moment of
excitement, even the representatives of the people do not go wrong;
they might. In the detached atmosphere of the court, they should
see to it that nothing is done that maybe against the Constitution."
The general consensus in the Constituent Assembly was that
in the matter of compensation for acquisition of property, and in
matters of socio-economic reforms the Courts would refrain from

interfering except in cases of a fraud on the Constitution or gross

abuse of power.
What kind
of persons did our Founding Fathers visualise for
the high judicial office? Nehru spoke for all when he said: "Judges
should be not only first-rate but should be acknowledged to be
first-rate in the country, and of the highest integrity, if necessary,

people who can stand up against the executive government, and

whoever may come in their way."

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 SOLI J. SORABJEE / 5

Have these hopes and beliefs of the Founding Fathers been

fulfilled or belied? Have the incumbents of judicial office measured

up to these expectations? Has the judiciary acted as a true sentinel

on the qui vive in protecting the fundamental
rights of our people?
A rude shock was received in 1954 when the Supreme Court
ruled in the case of Bela Banerjee that the expression "compensa
tion" in Article 31(2)
required full indemnification of loss of the
owner whose property was acquired. The Court refused, either by
designin view of the prevailing doctrine that debates could not
be referred to or by accident, to receive illumination from the
Constituent Assembly debates on this very question. The Assembly
had been assured by eminent and in particular
lawyers, by K.M.
Munshi, who were
mainly responsible for drafting the Constitu
tion, that the question of compensation would not be justiciable

except where it was so illusory as to be a fraud on the Constitution.

No wonder Nehru indignantly observed: "We have found that this

magnificent Constitution that we have framed was later kid

napped and by the lawyers."

purloined
Despite subsequent constitutional amendments, judicial
forays in the field of acquisition and compensation continued until
Parliament desperately determined to obviate forensic battles and
judicial intervention in the matter of property rights passed the
Constitution (Forty-Fourth Amendment) Act, 1978 and deleted

property rights from the fundamental rights chapter of the Con

stitution.
It would appear that initially
the programmes of land reforms
and socio-economic engineering and planning were considerably
inhibited on account of apprehended judicial intervention. The
unpredictability of judicial decisions led to several constitutional
amendments and gave rise to constitutional quarrels between the
Court and Parliament. Our experience with fundamental rights of
property carries its own tale. In a where there are wide
country
disparities of wealth and income, payment of full compensation
for acquisition of property is not feasible and can
hardly advance
social and economic justice.
Apart from this aberrant behaviour, our judiciary on the whole
has not acted as a super legislature or as a third chamber. Socio
economic like the Minimum
legislation, Wages Act, the Factories
Act, the Employees' Provident Fund Act, the Slums Clearance Act,
the various Rent Acts, the Payment of Bonus Act (except for one

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6 / India International Centre Quarterly

arbitrary provision), the Maharashtra Repairs Cess Act, the Con

tract Labour Abolition Act, has been consistently upheld. In In
dustrial the approach
law, rightly has been to support the

underdog rather than the employer. Courts have more often than
not negatived challenges to town planning and acquisition and

requisitioning legislation though it

even severely curtailed proper
ty rights. A majority of the laws imposing restrictions on rights to
property and trade and business have been judicially upheld rather
than struck down. Statistics will establish
percent that only a small

age of the laws enacted are challenged before the Courts,

and out
of these, very few have been struck down as unconstitutional.
The real reason for failure of socio-economic legislation and
land reformsis the pathetic absence of political will to implement
these beneficial measures. A question was specifically put by Mr
Justice H.R. Khanna in the course of the arguments advanced by
Mr NirenDe, the then Attorney-General. He asked him, "Mr
Attorney, can you point out a single instance after the sixties where
the judgment of a court has prevented the implementation of any
socio-economic legislation or land reform?" The AG said, "I will
consider the matter and give the answer tomorrow." The answer
never came. The answer really lies in the lack of genuine desire to

implement these measures.

Injunctions are issued by courts where the authority ad

ministering the statute in question has either by omission or design

flouted its mandatory requirements, like giving a previous notice.

Surely, courts cannot remain passive spectators to the commission

of an illegality because the legislation deals with land or other
reforms.
The charge that judicial review is undemocratic and judicial
invalidation of laws thwartsthe will of the people is based on the

fallacy that the will of the rulers and the will of the people are the
same. Actually in several cases they are at direct variance with each
other. The Constitution is the will, the deliberate will, of the people
and constitutional interpretation by the Courts, as Hamilton

pointed out, does

not "by any means suppose a superiority of the

judicial to the legislative power. It only supposes that the power of

the people is superior to both; and where the will of the legislature,
declared in its statutes, stands in opposition to that of the people,
declared in the Constitution, the judges ought to be governed by
the latter rather than the former."

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 SOLI J. SORABJEE / 7

Besides, one of the most serious

problems in our democracy
is to strike a balance between the rights of the majority and those
of minorities, between the rights of the present generation and
those of the future. It is not unlikely that a present majority may by
its actions jeopardise the fundamental rights of minorities and
affect their future. And what are popular majorities if not volatile

aggregations that melt and reassemble, shift and change? The

Constitution was enacted
advisably to channel the majority's

momentary impulses in the interest of the basic philosophy and

cardinal values of the Constitution. Upholding the fundamental
and constitutional rights of the people though at the cost of in
validating an act of Parliament that clearly violates these rights is
to discharge the function of guarding the Arc of the Constitution,
no more, no less.
When a court invalidates legislation, it neither approves nor
condemns any legislative policy, nor is it concerned with its wis
dom or expediency. It merely determines whether the legislation is
in conformity with the provisions of the Constitution or in con
travention of it.
For example, if a law prohibiting consumption of alcohol is

challenged, the court is not concerned with the wisdom of the

policy underlying the legislation and it cannot invalidate the law

because, in its opinion, the evil of drink cannot be effectively
tackled by legislation. But suppose the
law in question dis
criminates against certain communities
or classes, or the Prohibi
tion Act forbids any literature in praise of the cup that cheers

ranging from Omar Khayyam to G.K. Chesterton. In such a case it

would be the court's constitutional duty to strike down the legis
lation as violative of the fundamental right to equality or freedom
of speech and expression. Again when legislation involving
nationalisation of road transport is challenged, the individual no
tions of the justices about the policy of nationalisation are irrelevant
in deciding whether there has been a breach of any constitutional

provisions.

judges maintained "the cold neutrality of an impartial

judge" as was Burke's expectation? Let us be realistic.
Have Judges like you and me are human beings and we cannot
expect them to completely shed their predilections and pre-concep

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8 / India International Centre Quarterly

tions. The individual tone of the mind, the colour of past ex

perience, the character and variety of interests, the socio-economic

background of the judge inevitably play a role in the decision

making process. Chief Justice Patanjali Shastri frankly acknow

ledged that "It is inevitable that the so-called social philosophy and
the scale of values of the judges should play an important part." At
the same time, he recognised that "the Constitution is not meant

only for the people of their way of thinking but for all".
Doubtless, there have been occasions when judges have read
their preferences into statutory and constitutional provisions. The
decisions of the Supreme Court in Bela Banerjee and allied cases,
that the expression "compensation" in Article 31(2) necessitated full
indemnification of loss to the owner of the property, were possibly
influenced by the judges' rather exaggerated notion of property.
The judgment of Chief Justice S.R. Das declaring gambling as an
immoral trade beyond the pale of constitutional protection, Justice
Kapur's view that certain advertisements for sexual disorders were
not protected by the fundamental right of free speech and Justice

Hidayatullah's decision that Lady Chatterley's Lover was "obscene",

all reflect the social and moral philosophy of these judges.

Strong views for the rights of labour certainly influenced the

decisions of Justice Gajendragadkar in the field of industrial law.
Justice D.A. Desai's inveterate belief that landlords were a rapa
cious lot and all tenants deserved the Court's utmost solicitude was

transparent in his judgments. The powerful dissent of Justice

Subba Rao in the Gujarat University case reflects his strong views
about the rights of the States and their role in Centre-State relations.
The of the Supreme
decision Court in the Bank Nationalisation
Case is frequently cited as an instance of the Court striking down
the measure because of its disapproval of the policy underlying it.
it can be safely affirmed that in the overwhelming
However,
majority of cases, judges in India have not acted as knight errants
on white chargers in quest of their individual notions of justice.
Cases are decided
as if the parties before them were anonymous
and the issues
are legal and constitutional. Judges as a rule do not
intentionally take a view against their conscience or their oath, nor
do they take any cue from the sentiments of the ruling party.

By and large, judges do make a conscientious effort to

neutralise their personal beliefs and predilections. The classic state
ment of Justice Vivian Bose, in a case of preventive detention of

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 SOLI J. SORABJEE / 9

certain communists, aptly sums up the general judicial attitude. He

observed: "It is perhaps ironical that I should struggle to uphold
these freedoms in favour of a class of person who, if rumour is to
be accredited and if the list of their activities furnished to us is a
true guide, would be the first to destroy them if they but had the

power. But I cannot allow personal predilections to sway my

judgment of the Constitution."
A cry is raised in some quarters that the Court is getting
involved in political controversies and its decisions
are political.
Those who make this charge forget that the Constitution is, in a
sense, a political instrument. It deals with the rights of citizens,
Centre-State inter-State relations, governmental
relations, powers
and limitations
on these powers.
A perceptive Frenchman, Alexis de Tocqueville, gave an effec
tive answer to this criticism in 1833 in his classic work, Demociacy
in America. He said: "Scarcely any political question arises in the
United States which is not resolved sooner or later into a judicial

question... The American judge is brought into the political arena

independently of his own will. He only judges the law because he

is obliged to judge a case. The political question which he is called

upon to resolve is connected with the interest of the parties, and he

cannot refuse to decide it without abdicating the duties of his post."
Felix Frankfurter, the great American Judge, who emphasised
judicial restraint, endorsed this opinion in the fifties. These views,

though expressed in the American context, are apt and relevant

also in the Indian context.

Many election matters have a political complexion and politi

cal parties are deeply involved. Disputes between States of Kar
nataka and Tamil Nadu about sharing of water are fraught with

strong political overtones. That is no reason for a court to shirk its

constitutional duty of deciding such issues on the basis of the

existing law and the provisions of the Constitution. The Court does
not thereby trespass into the political thicket.
True,
political questions are those which from their very na
ture pertain to the sphere of another branch of the State and for
which judicially manageable standards are absent. For example,

questions like whether war should be declared, the strength and

composition of our armed forces, whether a particular nation

should be accorded recognition, and the like. Courts their
recognise
limitations and do not pronounce upon such issues. Lord Porter,

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10 / India International Centre Quarterly

who certainly was not an innovating judge, was of the view that
"The problem to be solved will often be not so much legal as

political, social or economic, yet it must be solved by a court of law.

For where the dispute is between Commonwealth and citizens....
it is only the court that can decide the issue. It is vain to invoke the
voice of Parliament."
Dr Rajeev Dhavan, who has done on the Supreme
research
Court of India, has well summed up the situation: "The Supreme
Court has not been political. The Court is not controversial, but it
has unwittingly figured in inevitable controversies."
Another misconception is that the judiciary should not deal
with or touch religious matters. Again what is overlooked is that
courts in the course of adjudicating upon legal disputes between
the parties are obliged to determine questions like:
What are the usages, practices and customs of a religious
denomination and whether they have acquired the binding force
of law?
Does
a particular shrine or a church constitute a public

religious trust? In which case the history of a particular religious

denomination, its beliefs, practices, activities and course of conduct
in relation to the shrine or church have to be enquired into for
determination of the question of law.
Has of a person from his
there been a valid excommunication
caste or religion? The act of excommunication affects the person's
civil rights and therefore there has to be a judicial investigation of
the tenets and discipline of the concerned caste or religion and the
manner in which the decision was reached.
Prohibition of cow slaughter
challenged by certain Mus
was
lims as infringing their religious freedom guaranteed by Article 25
of the Constitution on the ground that the sacrifice of a cow is a

mandatory religious duty, an obligatory act, which has to be per

formed on certain days, like Bakr Id. The Supreme Court ruled that

only the basic tenets of a religion are protected under Article 25

and the constitutional guarantee of freedom of religion does not
extend to practices which have grown up and which are not an

integral part of a religion. The Court then examined various

religious texts and other materials and repelled the constitution

al challenge. The question is not whether the decision was right
or wrong. The Court in ruling upon this issue did not dabble in

religion but was considering a constitutional challenge and in

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 SOU J. SORABJEE / 11

the course of it, it had to decide certain issues relating to a particular

religion.
Again courts have over the
years before and after inde
pendence in our country and elsewhere adjudicated issues on the
basis of scientific, technological or historical data and materials.
There is no inherent lack of competence in the judiciary to deter
mine whether a mandir
was factually in existence, whether it was
demolished and
a mosque was built on its site. The court with the
aid of archaeological, historical and other evidence is quite capable
of determining these questions. It does so not of its own volition,
but whenrequired to do so. The wisdom and expediency of a
Presidential reference of such questions to the Supreme Court is a
different matter altogether.
Have the courts been fearless judicial sentinels in protecting
the fundamental rights of our people?
Whatever may be the shortcomings of our judiciary it would
be impossible to lay the charge of subservience at its door. Judges
of our High Courts and the Supreme Court have not been Bacon's
"Lions under the throne". On the contrary, on occasions they have
roared so loudly and boldly that a ministerial has
many occupant
had to leave his throne in disgrace.
True, courts have
sometimes yielded or retreated and there
have been lapses, the most horrendous the disastrous
being judg
ment of the Supreme Court in May 1976 holding that a proven
malafide detention of a person could not be challenged during
emergency. But it was during the infamous June 1975 Emergency
that judicial independence was seen at its best in some
High
Courts, some of whose judges struck down various illegal orders
of detention, arbitrary decisions of the Censor, refusal to permit
public meetings and the like, undeterred by the likely consequence
of their transfer or supersession.

Again it must be conceded that there have been and will be

timorous judicial souls who conceive the proper judicial posture to
be one of humble deference to the legislative will and who are
unnerved by executive declamations about to
lurking dangers
uational security. But it would be to conclude that the
wrong higher
Indian judiciary has been weak or servile.
Let us not forget that it was a
single judge of the Allahabad
High Court, Justice Jagmohan Lai Sinha, who set aside the election
af the most powerful person in the country, the then Prime Mini

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12 / India International Centre Quarterly

ster, Mrs Indira Gandhi. Again it was a single judge of the Delhi
High Court, Justice T.P.S. Chawla who when the Janata Govern
ment was in power, quashed the prosecution of Mrs Gandhi for her
failure to testify before the Shah Commission.

ne of the greatest contributions of the Supreme Court in

recent times has been the development of Public Interest

Litigation (PIL). The Court has ruled that where judicial

redress is sought in respect of a legal injury or a legal wrong
suffered by persons, who by reason of their poverty or disability
are unable to approach the Court for enforcement of their fun
damental rights, any member of the public, acting bona fide, can
maintain an action for judicial redress. Thus the underprivileged
and the downtrodden have secured access to court through the
of a public spirited person or an organisation. In its
agency
landmark judgment in the Francis Coralin Mullin case the Court
declared that life in Article 21 does not merely connote physical
existence but the right to life includes the right to live with human
basic
dignity and all that goes along with it, namely, the right to the
necessities of life and to carry on such functions and activities as
constitute the bare minimum expression of the human personality.
This unique contribution made by the Supreme Court in the

development of human rights jurisprudence has transcendental

significance especially in developing Third World countries.

The real value of judicial review and public interest litigation
has been in its ready availability to the common person and par

ticularly to the exploited and the oppressed for checking executive

arbitrariness and gross violation of human
rights, particularly at
lower official levels. Students capriciously refused passports, petty
traders illegally deprived of licenses, government servants wrong
innocent detained, undertrials
fully dismissed, persons illegally
in for than the maximum sentence
languishing jails periods longer
workers deprived of minimum and mini
upon conviction, wages
mum benefits consistent with human dignity, labourers held in
conditions of servitude, inmates of asylum and care homes sub
and the countless victims of discrimina
jected to utmost indignity
tion are all beholden to our judiciary exercising its power of judicial
review. With all its imperfections, exercise of judicial review in
India has played a significant role in maintaining the Rule of Law,

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 SOLI J. SORABJEE / 13

preserving the basic values of the Constitution and making fun

damental rights living realities to some segments of the population
for whom the guarantee of human rights was a teasing illusion.
The Court's role in PIL has drawn severe criticism. Indignant
critics charge that the judiciary has taken over the administration
and some of the orders passed by the Courts in PIL tantamount to

government by the judiciary.

What these critics forget is that it is the notorious tardiness of

legislatures and the inertia, almost bordering on callousness, of the

executive branch which provide a proper occasion for judicial
activism. When continued derelictions of statutory and constitu
tional obligations and gross violations of human rights by public
authorities are brought to the notice of the court, it cannot refuse
to act. Unlike the executive or a legislature, the judiciary can neither

prevaricate nor procrastinate. It must respond.

It is not sufficiently realised that, in all these public interest
cases, the question is of enforcement of some fundamental right.
The Court is not legislating nor running the country but is merely

adopting certain operational principles and attitudes within the

framework of the Constitution. True, in some cases the judicial

pendulum has swung rather erratically and orders and directions

which have been passed are beyond the judicial sphere and do
more credit to the heart than to the head. Yet, on balance, the gains
from PIL in India have been considerable. The heartening feature
is that the Supreme Court has started "taking suffering seriously".
I notice signs of incredulity, a sense of amused amazement
because if the picture I have presented of the judiciary is even partly
correct, pray why is there such acute dissatisfaction with it? If the

judiciary is really the protector of the citizenwhy is it generally

regarded as its tormentor? Alas, that is the cruelest paradox of all.
What are the factors responsible for this? More than one. The
first and foremost is the ancient ill of which Hamlet laments, "The
laws' The interminable
delays". delays today have become in
tolerable, unbearable and have made a mockery of the justice

delivery system. The arrears in our courts are horrendous, shame

ful. All this has caused many a potential litigant who has been
wronged to settle out of court on terms which are unfair to him or
to secure justice by taking the law into his own hands or by recourse
to a parallel mafia dominated
system of justice that has sprung up.
The gravity of this development cannot be underestimated.

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14 / India International Centre Quarterly

What are the reasons for these atrocious delays? In the main
it is the present legal system which needs to be thoroughly over
hauled. Besides, there has been a litigation explosion. The Court's
dockets are overcrowded. Another factor is the frequent strikes by

lawyers and the prevailing practices of the legal profession which

have generated a vested interest in delays.
Another main cause for delays is the ease with which ajourn
ments are granted at the drop of a hat and frequently to suit the
convenience of counseldespite the amendment of the Civil Proce
dure Code which is aimed at preventing adjournments. Judges are
reluctant to displease lawyers who retain, not return, their briefs
and are busy earning in some other courts and therefore want an

adjournment and which, to the anguish of the litigant, is graciously

granted. At present applications for adjournments are made in the

apex court on grounds which would have been unthinkable before

and which, if made, would have
met with a thundering rejection.
Today adjournments are the order of the day. This practice must

stop even though it may make the judge unpopular. Judges are not

participating in a popularity contest.

Another
contributory factor is the delay by the government in

making appointments in judicial vacancies which are known well

in advance. Today there are several unfilled vacancies in the High
Courts which arenot working to the sanctioned strength. This

pernicious practice must end and, if necessary, a constitutional

amendment may be made which provides for filling up a judicial

vacancy within a stated time.

Added to all these is the undue extension of the special leave

jurisdiction of the Supreme Court under Article 136. According to

the clear intention of the Founding Fathers and judgments of the

apex Court special leave should be granted only in cases where

there is a substantial question of law or an issue of general public
importance or in case of manifest
miscarriage of justice. Yet today
the Court is spending hours in hearing matters like applications
for maintenance and alimony, appointment of receiver and grant
of injunctions, the amount ordered to be deposited in a summary
suit and a host of similar miscellaneous matters which are not
meant for the Supreme Court at all. No mechanism has yet been
devised for screening of cases. The proposal of the Law Commis
sion to have a Constitution Bench within the Court, which is

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 SOLI J. SORABJEE / 15

separate from the Appellate Division, requires serious considera

tion.
The reason for this phenomenon is not the Court's
hunger for
jurisdiction. Indeed the Court would
be glad to be relieved of the
burden of SLPs. The fact is that some orders and judgments of the

High Courts are so pathetic that the Supreme Court in its desire to

right every wrong forgets that it is not a third appellate court and
that in the majority of cases there must be finality at the High Court
level. Now therein lies the rub. The root of the trouble lies in the

quality of appointments made in the High Courts which are

responsible for the shoddy quality of judgments.

It is a notorious fact that in some cases integrity
ability and
which should be the criteria for appointment have taken a back seat
and are subordinated to political and other extraneous considera
tions. Judgeships are not bounties for political services. Gratitude
is a virtue and if the government wants to reward loyalists, make
them Managing Directors of some company or some public sector

undertaking, or appoint them as Ambassadors. But for God's sake,

do not tinker with judicial institutions. In some Courts,
High
lawyers who have been appointed judges had hardly any practice
or experience in the High Court and their incomes did not cross
the exemption limit under the Income Tax Act. The tragic part is
not that the mediocre are appointed, but that the meritorious are
excluded because the proposed appointee to be the son
happens
in-law or the uncle or the nephew of someone who is a critic of the

government.
A high powered judicial commission is the need of the hour.
There also should be more and openness in the
transparency
process of appointment of judges in the High Courts and also in
the Supreme Court.
One way in which the problem of arrears can be minimised is
by senior lawyers voluntarily agreeing to serve for six months or a
year as honorary ad hoc judges in the subordinate courts. I think
it will help to some extent because the real backlog is in the
subordinate judiciary. Besides many undesirable are
practices
prevalent there. If persons who are known to have refused High
Court and Supreme Court judgeship serve in the subordinate

judiciary, its tone will certainly improve apart from expeditious

disposal of cases.

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16 / India International Centre Quarterly

The Supreme can also help to reduce arrears of criminal

Court

appeals by constituting a bench of two judges who may sit by

rotation and dispose of old pending criminal appeals during the
long summer vacation. To my mind, it is shocking that a man has
to languish in jail for eight to ten years for no fault of his except
that he cannot afford to have bail and because the Supreme Court
has not got the time to hear his appeal. Ultimately when he is

acquitted who is going to compensate him for the slice of his life
which has been cut off? I do appeal to the judges of the apex Court
to set this good example which, no doubt, will influence the High
Courts. I understand this salutory practice was adjusted in the
Andhra Pradesh and Madhya Pradesh High Courts.
The judiciary must maintain its authority and dignity by ensur

ing full compliance with its orders. Contempt power no doubt is to be

sparingly exercised. But reluctance or hesitation to exercise it in the

face of defiance especially by high functionaries like a Speaker or a
Chief Minister sends wrong signals and conveys a wrong message.

Judges must not only be independent but seen and perceived to be so.

During British days Chief Justice West of the Bombay High Court
locked up the High Court and refused to open it till the government
officials carried out the Court's order. The spirit underlying that action
is commendable though one may disagree with the form.
The most
potent cause for public disillusionment and lack of
confidence in the judiciary is its suspicion of lack of judicial in

tegrity. Three decades ago allegations which are made today about
some holders of the high judicial office would have been dismissed
as the demented rantings of a disgruntled litigant. Today they
engage serious attention and call for strict and urgent measures.
True or false, the persistence of these allegations tends to under
mine the prestige and dignity of the judge in question, of the Court
as a whole and of our justice system itself.
The Bar has a very important role to play in rooting out judicial

corruption. Remember that no judge can successfully reap the

fruits of corruption without the active collaboration of lawyers. The
Bar owes it to itself, to the judiciary and to the people to hound out
such corrupt members from its midst. Its silence or acquiescence
cannot be rationalised on grounds of close friendship or so-called

damage to the institution.

important, More
if the allegations

against a judge are part of a motivated campaign, that too should

be exposed in fairness to the judge and in the larger interest of the

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 SOU J. SORABJEE / 17

institution. An effective and expeditious mechanism to deal with

judicial misconduct in lieu of the present cumbersome process of

impeachment is imperative.
We Indians have short memories and
forget easily. We may
overlook erroneous judgments, tolerate mediocre and pompous

judges, bear with

hasty judges and garrulous judges but we will
not and should
not forgive corrupt judges and those who aid and
abet them. If we do not remove these rotten eggs whose presence
however small, pollutes the entire institution, someone may im
prove upon Shakespeare's dramatic flourish, "The first we shall do
is to kill all lawyers" and include judges also in that ominous
resolve.
It is not suggested that the judiciary is an institution which has
reached its nadir at which so many of our democratic institutions

today find themselves. Nor should anyone carry the wrong impres
sion that the judiciary as a whole has become corrupt. That would
be most unfair to the vast majority of judges who are discharging
their judicial functions honestly and conscientiously under heavy

pressure of work. But it is undeniable that the public image of the

judiciary has been tarnished. The undesirable trends which I have

indicated must be arrested and eliminated. It cannot be overem

phasised that a judge like Caesar's wife must be above suspicion

and judges have to present a continuous aspect of dignity and
detachment. What is needed is collective judicial leadership at the

apex Court and setting of examples which will improve the public

image of the judiciary and restore its confidence.

Looking over the years since we made our tryst, with destiny,
it can be said that on balance the judiciary has been a boon despite
the baneful effects of some of its judgments, the occasional aberra
tions of the judicial process and the rare lapses of some judges. Our
judiciary has upheld the Rule of Law, sustained our constitutional
values and preserved us from despotism. And, God willing, it will
yet preserve us if we, despite our indignation and impatience,
value it rightly and support it firmly.

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